The Supreme Court of Appeal affirms the obligation of the state to take steps to recognise Muslim marriages in South Africa

The Women’s Legal Centre (WLC) notes the judgment handed down by the Supreme Court of Appeal today, 18 December 2020, which recognises the injustice and stigma suffered by Muslim women in South Africa because of the non-recognition of marriages concluded in terms of Sharia law.

In 2014, the WLC instituted proceedings on behalf of the Women’s Legal Centre Trust and hundreds of Muslim women who approach our offices every year. The proceedings were instituted against the President of the Republic, the Minister of Justice, Minister of Home Affairs, and others to seek legal recognition of Muslim marriages in South Africa.

It has been a long road for the WLC and Muslim women seeking legal recognition of marriages concluded in terms of Sharia law. The non-recognition of marriages concluded in terms of Sharia law has far-reaching implications for women and children. The challenges and difficulties experienced have been well documented over the past twenty years and form part of multiple court cases and judgments that have been handed down in South Africa.

In recognition of the precarious position of women in marriages concluded in terms of Sharia Law, the Supreme Court of Appeal has affirmed that the State has an obligation to address the systemic and historic discrimination and prejudice that Muslim women have endured because of the non-recognition of their marriages. Among other things, the Court found that the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979 are inconsistent with the Constitution of South Africa because they fail to recognise marriages solemnised in accordance with Sharia law as valid marriages. The Court also declared the common law definition of marriage is inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages. The Court has allowed the state 24 months to remedy the defect in law identified in this case.

The Court has also provided interim relief that will be applicable in the 24-month period when the states must enact legislation or amend existing legislation to recognise Muslim marriages. The interim relief is aimed at ensuring that Muslim women whose marriages are still valid at the time of the court order can approach a Court to obtain a divorce in terms of the Divorce Act. It is important to note, however, that this interim relief is only available to women whose marriages still exist or are valid in terms of Sharia law, or to women who have had their marriages terminated in terms of Sharia law, but who have approached a Court, have lodged proceedings and who have not had those proceedings finalised by a Court.

As the Court has declared the Marriages Act, the Divorce Act and the common law definition of marriage to be unconstitutional, this decision has to go to the Constitutional Court for confirmation.

Accordingly, the issue of the non-recognition of Muslim marriages remains unresolved for Muslim women. We are, however, steps closer to a final resolution on the matter as it heads to the Constitutional Court in 2021.

The WLC  is grateful for the contributions of Advocates Nasreen Bawa SC, Michelle O’Sullivan SC, and Jennifer Williams in the matter.